On June 27, 2023, the U.S. Supreme Court struck down a legal argument that would have given state legislators near-absolute authority to determine election rules. In doing so, the Court halted a partisan effort to use a fringe legal doctrine called the “independent state legislature theory” to overhaul election rules, and impose partisan maps and voting laws.
The “independent state legislature theory” was put forth in Moore vs. Harper, a North Carolina case emerging from that state’s 2021 adoption of congressional maps that heavily favored Republicans. Saying the maps were unconstitutionally gerrymandered, a group of North Carolina voters challenged the map in state court. The state supreme court agreed, which led partisan proponents to appeal to the U.S. Supreme Court.
The theory went like this: Under the U.S. Constitution, only state legislatures have the power to regulate federal elections. This power allows legislatures to act without approval from governors or intervention by state courts. Proponents cited the U.S. Constitution’s elections clause, which grants state legislatures the ability to set the “Times, Places and Manner of holding Elections for Senators and Representatives,” as justification.
The U.S. Supreme Court heard oral arguments on Dec. 7, 2022. Since then, a new conservative majority on the North Carolina Supreme Court overturned its earlier decision to strike down the congressional map. North Carolina Republicans promptly created a new congressional map, which will take effect before the 2024 election, to give Republicans up to four new seats in the U.S. House of Representatives. Opponents argued that the decision rendered Moore v. Harper moot and urged the high court to dismiss it.
In weighing in, however, justices asserted the case was not moot – and then, in its June 27 ruling, flatly rejected the independent state legislature theory. Writing for the 6-3 majority, Chief Justice Roberts asserted the Constitution’s elections clause “does not insulate state legislatures from the ordinary exercise of state judicial review.” Justices Thomas, Gorsuch, and Alito dissented.
This is a big victory – and big relief – for voting rights advocates in the United States. If the U.S. Supreme Court had accepted the broadest version of the “independent state legislature theory,” state lawmakers would have gained the sole power to make decisions regarding federal elections in their states. That would have radically remade American elections, making their administration and execution blatantly partisan, with no possible voter recourse via the courts or other branches of state government. For example, legislators would have been authorized to appoint slates of “alternate” presidential electors, regardless of who won the popular vote in their respective states, undermining the will of the people.
From a North Carolina perspective, the decision’s practical effect is minimal, because its state supreme court has already undone the redistricting ruling that brought it to the U.S. Supreme Court. Another redistricting case is pending – this one from Ohio – that could touch on the issue, but the justices are unlikely to address that case before 2024.